AJA v The State of Western Australia
[2014] WASCA 110
•22 MAY 2014
AJA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 110
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 110 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:31/2013 | 19 MARCH 2014 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 22/05/14 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AJA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Appellant charged with 20 counts of child sex abuse against his de facto son and de facto daughter Appellant convicted after trial on 15 of the 16 counts concerning his de facto son Appellant convicted after trial on one of the four counts concerning his de facto daughter Appellant acquitted on the remaining counts Whether the jury's verdicts of guilty were unreasonable |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a) |
Case References: | Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AJA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 110 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND 446 of 2012
Catchwords:
Criminal law - Appeal against conviction - Appellant charged with 20 counts of child sex abuse against his de facto son and de facto daughter - Appellant convicted after trial on 15 of the 16 counts concerning his de facto son - Appellant convicted after trial on one of the four counts concerning his de facto daughter - Appellant acquitted on the remaining counts - Whether the jury's verdicts of guilty were unreasonable
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A G Elliott
Respondent : Ms L Petrusa SC
Solicitors:
Appellant : Barone Criminal Lawyers Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
1 MARTIN CJ: This application for leave to appeal, and the appeal, should be dismissed for the reasons given by Buss JA, with which I agree.
2 BUSS JA: This is an application for leave to appeal against conviction.
3 The appellant was charged on indictment with 20 counts of child sex abuse. Sixteen of the counts related to his de facto son, C. The other four related to his de facto daughter, K.
4 The appellant pleaded not guilty to each of the counts. He was tried in the District Court before Keen DCJ and a jury. The jury returned verdicts of guilty on 15 of the 16 counts concerning C and on one of the four counts concerning K. The appellant was acquitted on the remaining counts.
5 The following table summarises the counts on the indictment and the jury's verdicts:
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| 9. | Sexual Penetration (C) by fellatio | (1 Nov 08 - 31 March 09) | Guilty |
| 10. | Sexual Penetration (C) by fellatio | (1 Nov 08 - 31 March 09) | Guilty |
| 11. | Incite child (K) to engage in sexual behaviour | (20 Aug 09 - 26 Sept 11) | Guilty |
| 12. | Sexual Penetration (C) penetration of C's anus with the appellant's finger | (1 Feb 10 - 16 Dec 10) | Guilty |
| 13. | Sexual Penetration (C) penetration of C's anus with the appellant's penis | (1 Feb 10 - 16 Dec 10) | Guilty |
| 14. | Indecent dealing (C) by the appellant masturbating C | (1 Feb 10 - 16 Dec 10) | Guilty |
| 15. | Indecent recording (C) by the appellant taking an indecent photograph of C | (31 March 11 - 17 May 11) | Not guilty |
| 16. | Indecent dealing (C) by the appellant masturbating C | (16 Sept 11 - 25 Sept 11) | Guilty |
| 17. | Sexual Penetration (C) by fellatio | (16 Sept 11 - 25 Sept 11) | Guilty |
| 18. | Procure indecent act (C) by the appellant procuring C to masturbate | (16 Sept 11 - 25 Sept 11) | Guilty |
| 19. | Sexual Penetration (C) by fellatio | (16 Sept 11 - 25 Sept 11) | Guilty |
| 20. | Indecent dealing (C) by the appellant masturbating in C's presence | (16 Sept 11 - 25 Sept 11) | Guilty |
6 The State's case at trial was in essence as follows.
7 The appellant shared in the care and upbringing of his stepchildren, C and K. At times, the appellant's wife (the mother of C and K) worked irregular hours. On these occasions the appellant was alone with the children and had the opportunity to offend.
8 The counts in the indictment were representative offences. The appellant's offending against the children became a regular occurrence. He had a sexual interest in C and K.
9 The appellant engaged in grooming behaviour towards C. C did not object to or complain about the offending. The appellant's grooming and abuse of C caused C to be confused about his sexuality.
10 The prosecutor argued that, notwithstanding some inconsistencies in the evidence of C and K, the jury should accept the evidence of each of them as truthful, accurate and reliable.
Overview of C's evidence in relation to the alleged offences against him
11 An overview of C's evidence in relation to the alleged offences against him is as follows.
12 C was aged about 11 when counts 4, 5 and 6 were allegedly committed. C gave evidence that the appellant came to C's bedroom and told him to come downstairs to the computer because the appellant had discovered that C had been viewing pornography. The appellant sat on a chair in front of the computer and told C to sit on his lap. C did so. The appellant opened a pornography site and asked C questions about why he had been looking at the site. C said he had a conversation with the appellant about sex. The appellant asked him to go into another room and masturbate in front of him. C went into the other room and masturbated while the appellant watched. C said the appellant left the room and returned with some lubricant. The appellant placed the lubricant on C's penis and C continued to masturbate to ejaculation. The evidence I have recounted related to counts 4, 5 and 6 on which the appellant was convicted.
13 Counts 7 and 8 allegedly occurred at a house in a Western Australian regional town. C was aged about 13 or 14. The events in question occurred at about 7.00 am or 8.00 am. C and the appellant were the only people in the house. C gave evidence that the appellant came into C's room. The appellant masturbated C and performed oral sex on him. The appellant then placed some lubricant on C's penis and the appellant's anus. The appellant then placed C's penis into the appellant's anus. The anal sex continued until C ejaculated. The appellant then left the room. The appellant was convicted on counts 7 and 8.
14 Counts 9 and 10 also allegedly occurred at the house in the Western Australian regional town. C was aged about 13. The events in question occurred at night. C was in his room. The appellant came in and asked him where the Game Boy was. The appellant told C to come downstairs. C did so. The appellant took C into the guest bedroom. The appellant placed his penis into C's mouth and C's penis into the appellant's mouth. C said his sister, K, was in the house at the time but she was asleep. His mother was not at home. She was probably at work. The episodes of fellatio lasted about a minute. C then returned to his room. The appellant was convicted on counts 9 and 10.
15 Counts 12, 13 and 14 allegedly occurred while the house in the Western Australian regional town was being renovated. C thought he was in year 10 at school when the events in question occurred. C went to the house with the appellant who had asked him to assist with the renovations. While they were at the house the appellant asked C to have sex with him. The appellant had some lubricant and they went into the bedroom that had previously been used by the appellant and C's mother. C and the appellant removed their clothes. The appellant placed lubricant on C's anus and the appellant's penis. The appellant put his penis into C's anus. This evidence related to count 13. C also gave evidence that on the occasion in question the appellant inserted two fingers into C's anus and pushed them in and out. This evidence related to count 12. C said the anal intercourse the subject of count 13 was painful. It continued until C and the appellant ejaculated. C said that during the anal intercourse the appellant masturbated C. This evidence related to count 14. The appellant was convicted on counts 12, 13 and 14.
16 Count 15 allegedly occurred about a month before C's 16th birthday. C said the appellant used the camera on his mobile telephone to take two photographs of C. C was not wearing any clothes. One of the photographs was a 'close up' of C's erect penis. C said he saw both of the photographs. According to C, the appellant wanted the photographs to send to a female friend. The appellant was acquitted on count 15.
17 Counts 16, 17, 18, 19 and 20 allegedly occurred at a house in a Perth suburb. On the occasion in question C's mother was in Darwin. C gave evidence that the appellant collected him from work at McDonalds in Tuart Hill on a Saturday night. C said the appellant referred to the evening as a 'date night' and they had agreed to 'do … sexual stuff'. C had a conversation with the appellant in the appellant's motor vehicle earlier in the week about Saturday being a 'date night'. The appellant collected him from work at about 9.00 pm or 10.00 pm on the Saturday night. They went home. C gave evidence that the appellant told him to shower and wash himself 'good', by which C understood he was to wash his genital area. The appellant told him to go to the appellant's bedroom after the shower. C had a shower, put on pyjama pants and a shirt and went to the appellant's room. The appellant was not wearing any clothes. A pornographic film was playing on the television in front of the bed. C said the appellant told him to remove his clothes and lie on the bed. C lay on the bed but remained clothed. Later, the appellant removed C's clothes. The appellant masturbated C and then performed fellatio. This evidence related to counts 16 and 17. While they were on the bed the appellant told C to masturbate and to put his penis in the appellant's mouth when he ejaculated. The appellant masturbated while C was masturbating. C ejaculated into the appellant's mouth and the appellant performed fellatio again. As C left the room the appellant continued masturbating. This evidence related to counts 18, 19 and 20. The appellant was convicted on counts 16, 17, 18, 19 and 20.
The Facebook exchanges between C and the appellant
18 The State tendered, as part of its case in relation to the alleged offences against C, Facebook exchanges between C and the appellant on 22 and 27 September 2011.
19 The exchanges read:
wow! |
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I know I can find more tonight |
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I would love to put my cock into that... |
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lol |
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and I ahve [sic] had my cock in some nice ass over trhe [sic] years.. |
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haha |
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I am going to do that in about one hour from now. |
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… huh |
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not you some one else.. what time do you get home. |
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5 Whos [sic] this someone else? |
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Cool. |
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? who is it |
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Does it matter.. |
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maybe I dont get any |
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you could if you want |
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when she leaving |
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who said anything about a she. before you get here anyway |
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I actually get home at 6 I finish at 5 |
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its my friend who lives around the corner. |
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ok have I seen her before |
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its not a her.. |
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oh that guy |
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did you want some |
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nah |
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OK see ya later. |
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cya |
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you online |
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yes |
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you ok |
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yeah |
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can you speak |
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not on phone im in tafe |
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can I call you later. |
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what for |
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to see whether you want me around or not. |
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im not sure you’ve been trying to have sex with my sister for years same with me you also cheated on mum |
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that was bullshit. |
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how so |
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[C] I need you and mum around |
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im sorry but I cant do it anymore and I don’t think mum can either |
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ok take care |
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cya im sorry |
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cool |
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Overview of K's evidence in relation to the alleged offences against her
20 An overview of K's evidence in relation to the alleged offences against her is as follows.
21 K gave evidence that, initially, she got on well with the appellant, but that changed when the family moved to the Western Australian regional town after she completed year 6 at school. The appellant became 'sexual' towards her.
22 K said the first incident (count 1) occurred when the family went for a picnic near a water tower in rural Western Australia. She said the appellant put his right arm around her and pushed the strap of her top down. This exposed her breast.
23 As to counts 2 and 3, K described an incident at their home in the Western Australian regional town. The appellant and K were watching a film. He asked her for a kiss. She gave him a peck but he tried to push his tongue into her mouth. K left the room. K said the appellant had done other things to her, for example, grab her buttock or endeavour to touch her breast, but she was unable to be specific about any incidents. She also said, however, in evidence-in-chief, that on the occasion when the appellant tried to push his tongue into her mouth, while they were watching a film, the appellant put his arm behind her and reached down and grabbed her breast. She pushed him away and told him never to do it again. K explained that the appellant regularly grabbed her buttock and breast while the family resided at the Western Australian regional town and in a Perth suburb. However, she could not recall any specific incidents.
24 The appellant was acquitted on counts 1, 2 and 3.
25 As to count 11, on which the appellant was convicted, K gave evidence about an incident when she was still at school. The appellant had bought her a motor vehicle. K was to repay him the purchase price. She owed about $2,000. When K complained to the appellant that she had no income or was short of money, the appellant told her that if she slept with him or gave him a 'blow job' he would pay her. The appellant said this to her once every month or two. She always said no and that she would repay the debt herself. K gave evidence that the appellant told her he loved her and her mother and, if he could, he would have both of them. The appellant was convicted on count 11.
The defence case at trial
26 The defence case at trial was that none of the alleged offending had occurred and that C and K had fabricated their allegations. The appellant gave sworn evidence to that effect at trial.
27 In addition to the appellant's evidence, defence counsel relied on:
(a) the failure of C and K to complain about the alleged offending to their mother, who was a police officer;
(b) the failure of C to complain about the offending to his counsellor; and
(c) the failure of C, on his own admission, to offer any resistance to the offending conduct.
28 The defence claimed that C had 'jumped on the bandwagon' of K's allegations.
29 Defence counsel argued that the appellant had no sexual interest in the children and the jury should accept his evidence to that effect and his denial of the offending.
30 In any event, the jury should not be satisfied beyond reasonable doubt in respect of any of the counts in the indictment, and it should acquit on all of them.
Overview of the appellant's evidence
31 The appellant denied in evidence that any of the alleged offending had occurred. He gave extensive evidence about his relationship with C and K.
32 The appellant said that his relationship with C had 'good and bad moments'. C required a lot of guidance in his life and the appellant endeavoured to give it. C was at times depressed and suicidal. The appellant described his relationship with C as 'very fractious'.
33 The appellant said that most of the time K was a 'nice kid', but as she grew older he and K argued frequently because she did not comply with his instructions. The arguments were heated.
34 The jury, by their verdicts of guilty, necessarily rejected the appellant's evidence in relation to the offences on which judgments of conviction were entered.
The ground of appeal
35 The sole ground of appeal alleges that, having regard to the evidence, the jury's verdicts of guilty are unreasonable.
36 On 8 September 2013, Mazza JA referred the application for leave to appeal on this ground to the hearing of the appeal.
The appellant's submissions as to the counts concerning C on which he was convicted
37 Counsel for the appellant submitted that C's evidence was 'significantly tainted' by his admissions that he had told lies at the trial.
38 It was submitted that C admitted having lied when he said in evidence that he thought he had informed the prosecutor that the appellant had told him he was going to 'fuck [K's] arse' (ts 262 - 263).
39 According to counsel, this was an 'extremely serious lie' in that:
(a) C's assertion that the appellant had made this statement supported K's evidence as to the appellant's offending against her.
(b) C claimed the statement had been repeated 'enough times for [him] to memorise them' (ts 262).
(c) Initially, C agreed, after being challenged by defence counsel, that he had not told the prosecutor about the appellant's alleged statement.
(d) Later, when it was again put to C that he did not disclose his assertion to the prosecutor, C replied, '[t]hink I did, I can't remember' (ts 263).
(e) Shortly afterwards, C agreed that he had lied when he attempted to blame the prosecutor for not informing the defence about C's assertion (ts 263, 269).
40 Counsel for the appellant referred to another admission by C to the effect that he had exaggerated when he claimed that sexual abuse by the appellant happened four or five times a week (ts 199). Counsel characterised the exaggeration as 'another serious lie'. The exaggeration occurred in the course of C giving evidence as to previously undisclosed details of counts 7 and 8 (ts 198). C said he had only remembered these details about 30 or 40 minutes earlier. On being pressed by defence counsel, C had sought to explain his failure to provide the relevant details earlier by claiming, 'I cannot name exactly every single event when it happened four or five times a week' (ts 199).
41 It was submitted that:
(a) C was willing to say on oath that things had occurred even though he had no specific recollection of the details; and
(b) he was willing to make false claims to endeavour to explain away irregularities or inconsistencies in his evidence.
42 C accepted in evidence that he wanted the appellant 'gone' and he did not like him (ts 269).
43 Counsel for the appellant submitted that the combination of C's antipathy towards the appellant, and C's admitted lies and exaggerations about matters of significance, was such that the jury ought to have entertained doubts as to C's reliability as a witness.
44 It was submitted that a 'key episode' in C's narrative of the alleged sexual abuse was an occasion when his mother went to Darwin on 17 September 2011. This occasion was relevant to counts 16, 17, 18, 19 and 20. The prosecutor said in her opening address that the offences the subject of those counts occurred on 17 September 2011 and that the appellant started sexually propositioning C earlier in the week before the mother left and referred to the night she left as the 'date night' (ts 66). C gave evidence that the 'date night' was a Saturday (ts 250). He explained: '[m]y mother left on a Saturday and it was that night' (ts 250). C added that his mother left for Darwin 'in the morning and it was that night that [the appellant] told me it was date night' (ts 250).
45 The State's case was that on the 'date night' the appellant collected C from work and, when they arrived at home, the appellant told C to shower and wash himself 'good', by which C understood he was to wash his genital area. The sexual activity the subject of counts 16, 17, 18, 19 and 20 occurred after C had showered.
46 C claimed in evidence that his recollection of counts 16, 17, 18, 19 and 20 was better than his recollection of the other offending 'because it was the last thing that happened' (ts 251).
47 On 24 September 2011, C's mother returned to Perth from Darwin.
48 C alleged that the appellant had sexually propositioned him again on the 'second Saturday' (that is, 24 September 2011), but C rejected his advances (ts 251). Counsel for the appellant submitted that this circumstance was 'critical' in that 'it meant that there was no room for confusion about whether the "date night" was the first or the second Saturday that [C's mother] was away [from Perth]'.
49 However, defence counsel elicited from C in cross-examination an admission that, contrary to his earlier evidence, he did not work on 17 September 2011 (ts 255). C agreed with defence counsel that he had been adamant earlier in his evidence that he had worked on the 'date night' and that the appellant had collected him from work (ts 255). C then contended that he had made a mistake in relation to the days and that the 'date night', on which counts 16, 17, 18, 19 and 20 were committed, was 'the next Saturday', that is 24 September 2011 (ts 256).
50 It was submitted that C's explanation was 'completely at odds with' his earlier evidence as to the timing of the 'date night' and his rejection of the appellant's advances in relation to a 'second date night'. Further, it was submitted that C, in describing the events of the second Saturday, introduced details which he had not previously disclosed, namely that he and the appellant were on a bed and the appellant had pulled down C's pants and attempted to touch his penis.
51 Counsel for the appellant submitted that, on an objective appraisal, there was further cause to doubt the truth, accuracy and reliability of C's evidence and that the jury, by its verdict of acquittal on count 15, 'clearly did so'. Count 15 allegedly occurred about one month before C's 16th birthday. His date of birth is 17 May 1995. The alleged photographs were not found on the appellant's mobile telephone when the police seized the telephone later in 2011.
52 Counsel for the appellant also relied on numerous other aspects of C's evidence which, he submitted, were 'either illogical or inconsistent'. It was contended:
(a) C said in his video-recorded interview on 11 October 2011, with officers from the Child Assessment Interview Unit, that the appellant was 'having sex with me, … through the use of family happiness, threatening to … leave the family and stuff like that … just continuously convincing me … that I'm bi' (VROI 2). C added that he 'only agreed [to have sex with the appellant] to keep my mum happy and all that … he used family happiness to con me into agreeing to do that … like keeping the family happy, like keeping my mum happy, keeping him happy' (VROI 6). However, C accepted at trial that the relationship between his mother and the appellant was strained (as a result of the appellant's alleged infidelity) and that he wanted the appellant 'gone' (ts 87, 269). Counsel for the appellant argued that the notion that C would submit to the alleged sexual abuse to ensure the appellant remained within the family unit was 'illogical'.
(b) Unchallenged evidence demonstrated that C chose to accompany the appellant alone on numerous occasions. Between October 2010 and early 2011, C accompanied the appellant on trips from Perth to the Western Australian regional town on about 10 occasions to assist him in carrying out renovation works on the former family home in the town (ts 207 - 216). Also, C was a member of a junior football team which planned to travel to Melbourne in June 2011 and C agreed to the appellant accompanying him as a chaperone (ts 280 - 281). Counsel for the appellant argued that the conduct revealed by the unchallenged evidence was 'entirely inconsistent' with C having been sexually abused by the appellant.
(c) Similarly, although he knew of the appellant's alleged intentions in relation to the 'date night', C remained with the appellant and did not attempt to stay elsewhere or alert anyone else (ts 249).
(d) During the Facebook exchanges, C complained to the appellant that 'I don't get any' in the context of a discussion about sexual activity. According to counsel for the appellant, it is 'astonishing' that C would make such a complaint to a person who was sexually abusing him. Further, the suggestion that C would engage in frank discussions about his sexuality with the appellant 'defies belief if [C's] allegations are true'.
(e) In addition to C failing to resist on any occasion, there was no evidence that the appellant used any form of compulsion or force against C. The essence of C's evidence was that the appellant suggested they engage in sexual activity. C agreed to the suggestions and voluntarily entered rooms for that purpose even when he was approaching 16 years of age.
(f) C gave evidence that he was 'desperate for [the sexual abuse] to stop but [was] too scared to speak out' (ts 165). When asked what he was scared about, C replied, 'I just wanted a happy family, a working family, and you know … ' (ts 165). He added, 'I didn't want the family to fall apart' (ts 165).
(g) When the appellant allegedly showed pornography to C and asked C to masturbate in front of him (counts 4 and 5), C was attending counselling. However, C did not mention the sexual abuse to the counsellor (ts 171). He said he was 'just too scared and too embarrassed' to tell the counsellor (ts 171).
(h) A little later, C said he did not mention the sexual abuse to the counsellor because the appellant had instructed him not to say anything about it to anyone and, also, to tell the counsellor that his relationship with the appellant had improved (ts 172). C did not, however, make that assertion to the police when he was interviewed by them (ts 172).
(i) There was a 'further significant inconsistency' in C's evidence as to when the appellant instructed him not to say anything about the sexual abuse to anyone. First, C said 'it came about two days after the first incident [that is, counts 4, 5 and 6] that he told me' (ts 172). However, a little later, C said the appellant told him not to tell anybody 'about 10 minutes after it happened' or 'within 10 minutes after' whilst C 'was sitting on the couch in the first room' (ts 172). However, C had no recollection of what happened in those 10 minutes (ts 173).
(j) C's evidence that the appellant instructed him, after counts 4, 5 and 6 were committed, not to say anything about the sexual abuse to anyone was at odds with a statement made by C in his video-recorded interview with officers from the Child Assessment Interview Unit. During the interview C said that he left the room after the sexual abuse, 'nothing' happened next and he 'just went to [his] room and started playing video games' (VROI 3). (However, as I note when dealing with the merits of the ground of appeal, C's statement during the interview related to what occurred after the sexual activity on the 'date night' (counts 16, 17, 18, 19 and 20) and not to what occurred after counts 4, 5 and 6 were committed.)
(k) Not only did C fail to complain to his counsellor, who he had been seeing for 'quite a few months' (ts 171), but he did not complain to his mother (ts 168 - 169). C knew that his mother was a police officer who worked with victims of domestic violence (ts 168 - 169) and was involved in the management of sex offenders (ts 169).
(l) As to counts 7 and 8, C added 'an entirely new event' to his narrative of the offending, namely that the appellant 'got on all fours' and C anally penetrated the appellant from behind (ts 198, 204 - 205). This event had not been revealed by C previously, either to the police or the prosecutor. According to counsel for the appellant, 'it is astonishing that [C] should so seriously overlook the first occasion when he penetrated another person anally'.
(m) When he confronted the appellant in the Facebook exchanges, C did not allege that the appellant had engaged in any actual sexual misconduct with him. Instead, C said the appellant had been 'trying to have sex with my sister for years, same with me' (ts 106).
53 Counsel for the appellant submitted that all of the matters he relied on, in combination, 'should have led the jury to have a reasonable doubt in respect of [C's] allegations'.
The appellant's submissions as to the counts concerning K on which he was convicted
54 Counsel for the appellant submitted that there were serious inconsistencies between the manner in which the State's case in relation to the counts concerning K was opened, on the one hand, and her evidence-in-chief in relation to counts 1, 2 and 3, on the other. In particular:
(a) The indictment alleged that the incident involving the appellant pulling down K's top (count 1) occurred before 31 August 2005. According to the prosecutor, in her opening address, count 1 happened before K's birthday in August (ts 60). The prosecutor added that K was 'adamant that [the offending] occurred before her birthday in August of [2005]' (ts 60).
(b) However, K said in evidence-in-chief that count 1 'happened after my birthday'; that is, 'after August' (ts 310).
(c) K told defence counsel that her birthday was 20 August 1993 (ts 325). K claimed in cross-examination that she had said in evidence-in-chief that she 'wasn't sure' whether count 1 happened after her birthday in August 2005 (ts 326). After further questioning by defence counsel, K asserted that she did not remember whether count 1 happened 'before or after' her birthday (ts 329). Defence counsel put to K a passage in her witness statement where she said count 1 occurred before her birthday in August 2005 (ts 329). K agreed with defence counsel that her witness statement asserted that count 1 occurred 'before' her 12th birthday and that this was in direct contrast to her evidence-in-chief (ts 329).
(d) K said in evidence-in-chief in relation to count 1 that the appellant had pulled the strap of her top down and had put his right arm around her (ts 311 - 312). She also said her top was grey and blue in colour and had a shoulder strap on one side and a sleeve on the other (ts 312). This was her favourite top (ts 332). The sleeve was on the left side (ts 312). It was submitted by counsel for the appellant that '[i]mplicitly, if the appellant was using his right arm, [then it] was the thin strap which he must have pulled'. (emphasis added)
(e) K agreed in cross-examination that the events the subject of count 1 were 'burned' in her memory (ts 331). The appellant had put his right arm around her and used his right hand to pull down her shoulder strap (ts 331).
(f) However, K then acknowledged in cross-examination that she had previously informed the police that the appellant had put his left arm around her (ts 331). K also acknowledged that she had previously told the police that the top which she was wearing was blue in colour and that it had one thick strap and one thin strap (ts 333). Although it was not in her witness statement, K claimed she had told the police that the top 'had a sleeve' (ts 333 - 334).
(g) K described in evidence-in-chief an incident in the theatre room when the appellant tried to 'force a kiss' on her (count 3) (ts 313 - 314). She said the appellant was unable to put his tongue in her mouth 'because my mouth was closed so I could feel the tongue just touch my lips which is what I knew was happening' (ts 314). The prosecutor asked K whether 'anything else happened at that time' (ts 315). K said the appellant asked her not to talk about the incident and she then left the room (ts 315).
(h) When the prosecutor asked K whether she remembered any specific incidents when the appellant touched her breasts, K said this happened in the theatre room 'a while' after the kissing incident (ts 315). K explained that the breast touching incident occurred at a different time from the kissing incident (ts 315). According to counsel for the appellant, by giving that evidence K 'turned one event into two entirely separate events'.
(i) When the kissing incident was raised in cross-examination, K said it occurred 'at the same time' as the incident when the appellant grabbed her breast (ts 351). Defence counsel put to K that K had not said in her evidence-in-chief that the two incidents occurred at the same time (ts 351 - 352). K claimed she was not questioned about that issue earlier (ts 351). Defence counsel put to K that her earlier evidence was different (ts 351 - 352). K then acknowledged the difference and explained that the reason why she had just said the two incidents were 'the same event' was that she had recently read par 33 of her witness statement (ts 352). In par 33 K said the kissing incident and the breast touching incident happened on the same day (ts 352).
(j) The prosecutor said, in her opening address, that the incident in the theatre room, comprising counts 2 and 3, happened at the end of 2006 (ts 61). K gave evidence to that effect in cross-examination (ts 340). K rejected defence counsel's suggestion that the renovations which led to the construction of the theatre room did not occur until 2008 (ts 340).
(k) K claimed the incident in the theatre room (counts 2 and 3) stuck in her mind because she had a boyfriend at the time (ts 340 - 341). She said his name was Andrew, he was her boyfriend when she was in year 8, he was her first boyfriend, and they broke up at the beginning of year 9 (ts 340 - 341). That evidence was consistent with the incident occurring in 2006.
(l) However, photographic evidence as to the timing of the theatre room renovations indicated that they were not completed until 2008 (ts 425 - 426, 456 - 458).
(m) The appellant gave evidence that he had surgery on one of his shoulders on 2 September 2006 (ts 458). After the operation his arm was in a sling for about six weeks (ts 458). The surgery on his shoulder delayed the renovations and they were not completed until early 2008 (ts 458).
55 Counsel for the appellant submitted that K acknowledged in her evidence two events which 'common experience would suggest were most unlikely if the allegations which she made about the appellant were true'. First, there was an occasion while K was living in the Western Australian regional town when she agreed to ride with the appellant on the back of his motorcycle from the town to Perth. Her explanation was: 'I had no good reason not to go' (ts 363 - 364). Secondly, K agreed that at least at the beginning of 2010 she had asked the appellant 'to walk [her] down the aisle' when she got married (ts 375). K had earlier denied speaking to the appellant about the matter (ts 373). According to counsel, the first of these events was 'especially unlikely' as it would have involved K riding with her body pressed 'right up against [the appellant]' for an extended period (ts 364).
56 Counsel for the appellant argued the matters he relied on were 'so significant that the jury returned not guilty verdicts' on counts 1, 2 and 3. Counsel maintained 'it followed, therefore' that the jury was not satisfied beyond reasonable doubt as to the reliability of K's evidence in respect of counts 1, 2 and 3.
57 Counsel for the appellant then submitted that the unreliable features of K's evidence in relation to counts 1, 2 and 3 (on which the appellant was acquitted) were such that 'the jury ought to have entertained a doubt' as to the appellant's guilt in respect of count 11 (on which he was convicted).
58 In addition, counsel for the appellant argued that count 11 was not supported by 'other direct testimony'. Counsel conceded, however, that C had asserted that the appellant had expressed a sexual interest in K. Counsel sought to discount C's evidence by pointing to a lack of specificity in the evidence (for example, 'dates and places').
59 Further, the offence the subject of count 11 was said to have occurred between 20 August 2009 and 26 September 2011. The timing of count 11 was tied to the repayment of the purchase price of K's motor vehicle. Counsel argued that exhibit 13 demonstrated, objectively, that K's mother repaid the purchase price on 29 October 2009. The mother gave evidence that she repaid the moneys owing by K to the appellant for the vehicle, and that K was 'quite probably' aware of that fact (ts 413).
60 Counsel for the appellant submitted that the 'serious defects' in K's evidence, on which he relied, should (as distinct from could) have led the jury to have a reasonable doubt in relation to the offence alleged in count 11.
The ground of appeal: applicable legal principles
61 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
62 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
- See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
63 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
- See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300[41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
64 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
65 However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
The merits of the ground of appeal: the counts concerning C on which the appellant was convicted
66 The appellant's complaints in relation to the truth, accuracy and reliability of C's evidence concern:
(a) an alleged 'extremely serious lie' as to whether C had disclosed to the prosecutor the appellant's precise words about the appellant's alleged sexual interest in K;
(b) C's exaggeration of the frequency of the alleged sexual abuse against him;
(c) the date on which counts 16, 17, 18, 19 and 20 were allegedly committed;
(d) the appellant's acquittal on count 15 (the indecent recording charge); and
(e) numerous aspects of C's evidence which are allegedly illogical or inconsistent.
67 All of these matters (apart from the appellant's acquittal on count 15) were highlighted by defence counsel in her cross-examination of C. The trial judge referred to many of the matters in his summing up in the course of summarising the evidence and the defence case (ts 635, 644, 647, 650, 651, 652).
68 As to the alleged 'extremely serious lie' about the appellant's alleged sexual interest in K:
(a) C said in his video-recorded interview on 11 October 2011 with officers from the Child Assessment Interview Unit that, shortly after K informed their mother about the appellant's abuse of her, C told the mother that the appellant 'tried the same thing on me and even told me that he wanted to do her' (VROI 26).
(b) During C's evidence-in-chief at trial, after his video-recorded interview on 11 October 2011 had been played to the jury, the prosecutor asked C whether he remembered the exact words used by the appellant. The relevant exchange reads:
And in your interview … you said that [the appellant] told you that, 'He wanted to do her'. Those were the words in your interview---Yeah.
Yes. So when 'he' told you, who are you referring to there---[The appellant] told me.
Do you remember when it was that he - - ----There were several occasions where he would just say that he would really like to have sex with her.
Do you remember what his exact words were---I think there were several occasions where he would just say that he wanted to bend her over and fuck her arse (ts 88).
(c) The passage from C's evidence-in-chief at trial is consistent with the earlier statement in his video-recorded interview. At trial C was asked about the appellant's exact words. At the interview C merely recounted a conversation that he had with his mother about what the appellant had said concerning K.
(d) It is true C initially said in evidence that he had told the prosecutor about the appellant's exact words on the Wednesday prior to the commencement of the trial and C later admitted in evidence that he had lied in saying he had informed the prosecutor about the exact words.
(e) However, I am satisfied, after evaluating C's video-recorded interview and his evidence at trial in the context of the trial record as a whole, that C's admitted lie did not assume the significance contended for by counsel for the appellant.
69 As to C's exaggeration of the frequency of the alleged sexual abuse against him:
(a) The indictment alleged six discrete episodes of indecent dealing or sexual penetration by the appellant in relation to C between 1 October 2007 and 25 September 2011.
(b) However, C gave evidence to the effect that the six alleged episodes did not, on his version of events, comprise the totality of the sexual abuse against him. During cross-examination the following exchange occurred between defence counsel and C:
So [C], when you say that's just what he usually did, does that mean that during your visually-recorded interview, when you had to come together and talk about events you just put together a collection of things that maybe he just usually did---There were way too many events for a video.
Yes---This went on for five years.
Okay---I cannot name exactly every single event when it happened four or five times a week.
It happened four or five times a week, did it, [C]---Not four or five times but it happened quite often.
That's what you just said, it happened four or five times------I exaggerated.
- - - a week---Sorry.
You exaggerated. That's exactly right. You came and you exaggerated. Yes---At that point, just right then, yes.
Yes. Yes. Because - - ----Because it didn't happen four or five times a week.
Because you want him to get into trouble. You want [the appellant] to get in trouble---I want him to go away for what he did to me.
Yes. You want him to get in a lot of trouble, don't you, [C]---For what he did to me.
Yes---For what he did to me for five years (ts 199 - 200).
(c) This passage shows that C, upon being challenged by defence counsel, immediately withdrew his assertion that the sexual abuse happened four or five times a week. The exaggeration occurred in the context of C claiming in substance that the sexual abuse was a frequent occurrence over a period of about five years. I am satisfied, on my evaluation of C's video-recorded interview and his evidence at trial in the context of the trial record as a whole, that the exaggeration did not assume the significance contended for by counsel for the appellant.
70 As to both the alleged 'extremely serious lie' about the appellant's alleged sexual interest in K and C's exaggeration of the frequency of the alleged sexual abuse against him, the jury was well aware of those matters and their potential to undermine the credibility of C's evidence in relation to the allegations in the indictment and his credibility generally. Defence counsel submitted to the jury in her closing address:
It's not my job, nor even [the appellant's] job, to prove to you that he didn't do these things and it's definitely not my job nor even [the appellant's] job to prove to you that [K] and [C] are lying and making up the allegations. But I think you'll find it very easy to come to the view that both [K] and [C] are liars and that they both repeatedly lied during their evidence. Let's not forget that [C] even went so far as to admit he was lying under oath.
…
So what about [C]? How did he deal with being caught out changing the details? Think back to his evidence that [the appellant] supposedly told him that he repeatedly wanted to fuck [K's] arse. Now, he said he heard it so many times that he had memorised it. I didn't use that word. He used that word. Page 262: You're not mistaken about the words?---No. Got them right?---Yes. He said them enough times for me to memorise them. But when confronted with the fact that he had never told the police or the prosecutor the words he had supposedly memorised, what did he do? He tried to blame the prosecutor. And when I challenged him about that, he accepted it. He accepted that he'd sat in that witness box and he had lied. Page 263: You were lying just a minute ago when you tried to blame the prosecutor for not telling me, weren't you?---Yes. He was simply trying to lie his way out of it. And we all sat here and we waited and we waited whilst he struggled in silence when confronted with his lies and what that meant.
And why did we have to wait? Because there's no excuse. He was simply lying. There's no excuse. You'll also remember his blatant lie about how things happened to him. Four to five times per week, he explained, only to concede almost immediately that it was a flat out lie and exaggeration. How do you trust the word of a person who concedes he is prepared to lie under oath? So when you start to consider the evidence carefully, we say it's clear [K] and [C] are just not truthful witnesses. And think about the body language. Think back to that visually recorded interview. See if you can remember just how many times [C] touched his ear, touched his nose, touched his neck, put his hand over his face, put his jumper over his face, played with his ring, put it over his face. What does that tell you about what he's saying during that interview? Now, we do it every day. We assess people's body language. What's he doing when he's covering his face? Is he covering his lies? We say it's clear that [K] and [C] are just not truthful witnesses. You simply can't rely upon the truthfulness of their evidence (ts 30, 34, 35).
71 As to the date on which counts 16, 17, 18, 19 and 20 were allegedly committed:
(a) It does not follow, from C's mistake as to the date on which counts 16, 17, 18, 19 and 20 occurred, that the jury was precluded from being satisfied beyond reasonable doubt that the particular facts and circumstances, as alleged in the indictment and by C in his other evidence, in fact occurred.
(b) The Facebook exchanges between C and the appellant on 22 September 2011 occurred on the Thursday between the two Saturday nights in question. It is reasonably open to conclude that those exchanges contained an admission by the appellant that he had engaged or wished to engage in sexual activity with C at about that time.
(c) In my opinion, it was not inevitable that the jury must have entertained a reasonable doubt about the appellant's guilt on counts 16, 17, 18, 19 and 20.
72 As to the appellant's acquittal on count 15 (the indecent recording charge):
(a) The offence alleged in count 15 in respect of C was materially different from the offences alleged in the other counts in respect of C in that photographic evidence of the commission of the offence alleged in count 15 would have existed at some time. However, the State did not produce the evidence. There was evidence that the appellant's mobile telephone had been seized by the police and examined (ts 298). Data from the telephone was downloaded in about November 2011, but there was no evidence as to when the telephone was seized (ts 298). It may have been seized after the appellant became aware, in a general sense, of the allegations against him.
(b) The evidence at trial did not establish that the alleged photographs had not been taken with the camera on the appellant's mobile telephone.
(c) The jury's decision to acquit the appellant on count 15 does not relevantly undermine the credibility and reliability of C's evidence on the other counts or suggest that the convictions on the other counts are unsafe or unsatisfactory.
(d) The jury's decision to acquit on count 15 merely demonstrates a cautious and exacting approach by the jury in separately reviewing the evidence on each count and conscientiously discharging their civic duty.
(e) It may also be that the jury took a 'merciful' view of the facts on count 15, this being a function which has always been open to, and often exercised, by juries. See MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 - 368 (Gaudron, Gummow & Kirby JJ).
(f) The jury was not precluded by the appellant's acquittal on count 15 from being satisfied beyond reasonable doubt as to his guilt on the other counts in respect of C.
73 As to the numerous aspects of C's evidence which are allegedly illogical or inconsistent:
(a) These matters were in substance relied on by defence counsel at trial and emphasised in her closing address.
(b) The matters were in general of a minor nature. They are not uncommon in trials involving alleged child sex abuse over a lengthy period in an intra-familial setting.
(c) It is reasonably open to conclude that the matters in question were consistent with, and explicable by, the sexualisation of C at a young age by the man who was his mother's husband. For example, during the video-recorded interview with officers from the Child Assessment Interview Unit, C was asked how he felt when the appellant inserted two fingers into C's anus and pushed them in and out (count 12) (VROI 58). He replied that it felt 'good but weird' (VROI 58). Similarly, during re-examination at the trial, C was asked how the sexual abuse felt physically. He said it 'felt good but [he] didn't want it' (ts 284).
(d) C also said in re-examination that the fact his mother was a police officer, who worked with domestic violence offenders and sex offenders, made it more difficult for him to speak to her about the alleged sexual abuse. He said:
It made it a little bit harder knowing that she'd have to deal with all of it and it's a lot of stress. It wasn't easy to talk about it in the beginning (ts 283).
(e) The jury was not precluded by those aspects of C's evidence which the appellant alleged were illogical or inconsistent from being satisfied beyond reasonable doubt as to the appellant's guilt on those counts in respect of C on which the jury returned verdicts of guilty.
74 The matters relied on by counsel for the appellant in his attack on C's evidence do not, in combination, require the conclusion that the jury should have had a reasonable doubt as to the appellant's guilt on the counts regarding C on which it returned verdicts of guilty.
75 I am not satisfied that it is to be inferred that the jury acted unreasonably in failing to form a generally adverse view as to the truth, accuracy and reliability of C's evidence.
76 The jury was entitled to be satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence in respect of the counts on which judgments of conviction were entered while entertaining a reasonable doubt as to the appellant's guilt on count 15.
The merits of the ground of appeal: the count concerning K on which the appellant was convicted
77 The appellant's complaints in relation to the truth, accuracy and reliability of K's evidence concern:
(a) the timing of the offence alleged in count 1;
(b) whether the appellant had his left or right arm around K during the commission of count 1 and the alleged inconsistencies in her description of the top she was wearing at that time;
(c) K's alleged confusion about whether the alleged incident when the appellant kissed her on the mouth (count 3) and the alleged incident when the appellant squeezed her breast (count 2) occurred during the same episode or different episodes;
(d) the timing of the alleged interaction between K and the appellant in the theatre room by reference to when that room was renovated;
(e) the motorcycle journey from the Western Australian regional town to Perth; and
(f) K wanting the appellant to 'walk her down the aisle' at her wedding.
78 All of these matters were highlighted by defence counsel in her cross-examination of K. The trial judge referred to the matters in his summing up in the course of summarising the evidence and the defence case (ts 656, 657, 659, 668).
79 As to the timing of the offence alleged in count 1:
(a) Count 1, as amended, pleaded that the appellant indecently dealt with K by exposing her breast between 1 January 2005 and 31 August 2005.
(b) K was aged 11 or 12 during this period, her 12th birthday being 20 August 2005.
(c) K gave evidence in November 2012, more than seven years after the commission of the alleged offence.
(d) K said in evidence-in-chief that the incident occurred when she was about 13, while she was in year 7 at school (ts 309 - 310). This evidence contained an inaccuracy. K agreed in cross-examination that her 12th birthday would have been in year 7, which was 2005 (ts 325).
(e) However, K volunteered in evidence-in-chief: 'I don't remember years, I just remember school years' (ts 310). She said in relation to this incident that it occurred 'towards the end of winter' because the wheat grass was 'really green' and there was 'lots of water' (ts 310).
(f) It is apparent from K's evidence as a whole that she did not regard herself as especially reliable in relation to dates, but she was definite that the incident occurred in late winter. This is consistent with the offending occurring in the month of August.
(g) In my opinion, it was not of any particular significance whether the incident the subject of count 1 occurred just before or just after K's 12th birthday in August 2005. The substantial interval between the commission of the offence and the giving of evidence in court is reasonably capable of explaining any confusion K may have had in recalling whether the appellant exposed her breast before or after her birthday.
(h) The appellant's assertion that the matter complained of is one of a number of 'serious inconsistencies' in K's account of events is a material overstatement.
80 As to whether the appellant had his left or right arm around K during the commission of count 1 and the alleged inconsistencies in her description of the top she was wearing at that time:
(a) Whether the appellant had his left or right arm around K, in the context of K recalling events from seven years earlier, is of no particular moment.
(b) As to the top she was wearing, it is clear that K was describing an item of clothing where one side consisted of a thin strap (lowered by the appellant to expose her breast) and the other side was wider or thicker. K said in her evidence-in-chief that the top had a 'shoulder strap on one side and a sleeve on the other' (ts 312). In her witness statement K described the top as having 'one thick strap and one thin strap' (ts 333). Any inconsistencies in K's description of the top are unimportant.
(c) Whether the top was 'grey and blue', as described by K in her evidence-in-chief, or simply 'blue', as described by K in her witness statement, is insignificant.
81 As to K's alleged confusion about whether the alleged incident when the appellant kissed her on the mouth (count 3) and the alleged incident when the appellant squeezed her breast (count 2) occurred during the same episode or different episodes and as to the timing of the alleged interaction between K and the appellant in the theatre room by reference to when that room was renovated:
(a) The indictment pleaded that counts 2 and 3 occurred on the same unknown day between 1 September 2006 and 19 August 2009.
(b) The prosecutor, in her opening address, said count 3 occurred 'immediately after' count 2 (ts 61).
(c) Defence counsel, in cross-examination, gave K her witness statement and invited her to read various paragraphs relating to the matters the subject of counts 2 and 3. Defence counsel then highlighted the inconsistencies in K's accounts (ts 348 - 350). K, having been given the opportunity to refresh her memory of events from her witness statement, asserted that her witness statement was correct and the evidence she gave the previous day was mistaken. This is not surprising given the interval of more than seven years between the commission of the alleged offences and K giving evidence at trial.
(d) K's evidence-in-chief was to the effect that the appellant had touched her in a sexual manner repeatedly and over a substantial period of time (ts 314 - 319). Accordingly, on her account of events, it is unremarkable that K had difficulty recalling precise incidents when giving evidence at trial many years after their occurrence.
(e) K said the events the subject of counts 2 and 3 occurred in 2006. When cross-examined about the year she said, 'it sticks in my mind because I had a boyfriend at the time' (ts 340). She had this boyfriend when she was in year 8 at school (ts 340 - 341). Given her assertion as to the frequency with which the appellant touched her in a sexual manner over a considerable period, the credibility and reliability of K's evidence in relation to count 11 was not necessarily undermined by her belief that the theatre room was renovated in 2006, despite defence counsel adducing evidence to the effect that the renovations did not commence until after 2006 and were not finished until 2008.
82 As to the motorcycle journey from the Western Australian regional town to Perth and K wanting the appellant to 'walk her down the aisle' at her wedding:
(a) I do not accept the appellant's submission that 'common experience' suggests that the motorcycle journey, and the discussion about the appellant 'walking K down the aisle' at her wedding, were unlikely to have happened if K's allegations about the appellant's sexual abuse were true.
(b) The 'common experience' of the courts in relation to intra-familial child sex abuse does not indicate that there is a 'normal' or 'predictable' response by a child to such abuse. However, it is not unusual in intra-familial child sex cases for the victim earnestly to desire the appearance and reality of a 'normal' or 'ordinary' family. During the period of the offending a victim may in some cases have ambivalent feelings towards the offender.
(c) The appellant's submission does not take into account the dynamics of the family environment in which K was raised.
(d) Before the family commenced residing in the Western Australian regional town, K viewed the appellant as her father (ts 309). She 'respected him' and 'looked up to him' and he 'treated [her] as another daughter' (ts 309).
(e) It is apparent that, despite the sexual abuse, K regarded the appellant as more of a father figure than her biological father.
(f) In these circumstances, K's remarks about wanting the appellant to 'walk her down the aisle' at her wedding are reasonably capable of reconciliation with K's allegations regarding count 11.
(g) K's evidence about the motorcycle journey was to the effect that the appellant asked her, in the presence of her mother, to travel with him to Perth. She said in evidence that '[she] didn't have a reason [not to go] so I ended up … giving up and going' (ts 364). K's evidence on this issue is reasonably capable of being understood as an assertion that she could not refuse to travel with the appellant without disclosing the sexual abuse to her mother. K's explanation for accompanying the appellant is reasonably capable of belief.
83 The jury's decision to acquit the appellant on counts 1, 2 and 3, and counsel for the appellant's criticisms of K's evidence, do not necessarily undermine the credibility and reliability of her evidence on count 11, or suggest that the conviction on count 11 is unsafe or unsatisfactory.
84 The trial judge gave conventional directions to the jury about separately considering each count on the indictment and as to the jury's right to accept some parts of a witness's evidence and to reject other parts (ts 619, 621 - 624).
85 Counts 1, 2 and 3 were alleged to have occurred between 1 January 2005 and 19 August 2009. By contrast, count 11 was alleged to have occurred between 20 August 2009 and 26 September 2011. His Honour gave the jury a warning in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 (ts 664 - 666).
86 The different verdicts on the counts in respect of K are reasonably explicable on the basis that:
(a) counts 1, 2 and 3 were alleged to have occurred at materially earlier times than count 11; and
(b) the jury acted in a cautious manner in accordance with his Honour's directions.
88 The jury was entitled to be satisfied beyond reasonable doubt as to the truth, accuracy and reliability of K's evidence in respect of count 11 while entertaining a reasonable doubt as to the appellant's guilt on counts 1, 2 and 3.
Conclusion
89 I am satisfied, after examining the trial record (in particular, the evidence of C and K and the video-recorded interview of C), that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on those counts on which he was convicted. A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of C and K) from being satisfied beyond reasonable doubt of the appellant's guilt on 16 of the 20 counts in the indictment. The jury had the very significant advantage of seeing and hearing the witnesses (including, in particular, C, K and the appellant) give their evidence. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on the counts on which he was convicted. The jury's verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept.
90 I add, for completeness, that the jury's verdicts were not factually inconsistent or incompatible in the relevant sense.
91 The different verdicts do not represent an affront to logic or common sense.
92 The ground of appeal fails. Leave to appeal should be refused. The appeal must be dismissed.
93 MAZZA JA: I agree with Buss JA.
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